On June 12, 2018 the United States Court of Appeals for the Third Circuit found that a fired nurse was not protected under the Emergency Treatment and Active Labor Act (“EMTALA”) whistleblower provision because she did not actually “report” a violation. Gillispie v. Regionalcare Hospital Partners, Inc., No.16-4307 (3rd Cir. 2018). The appellant in the case was the nurse on duty when a pregnant patient reported to the emergency room with complaints of vaginal bleeding and discomfort. After examining the distressed woman the hospital personnel discharged her to go directly to a gynecologist. The hospital did not transport the distressed woman nor were they able to contact the gynecologist to confirm she arrived. The hospital organized several conference calls and meetings to discuss whether the distressed woman’s discharge violated the EMTALA.
The EMTALA requires hospitals to first examine each patient to determine whether an emergency medical condition exits. If the examination reveals the patient is suffering from an emergency medical condition, the hospital usually must stabilize the patient before getting into the business of trying to discharge or transfer him or her elsewhere. A hospital that either (1) fails to properly screen a patient or (2) releases a patient without first stabilizing his or her emergency medical condition thereby violates EMTALA. Moreover, EMTALA’s whistleblower provision protects only employees who have “reported a violation” of one of the statutes provisions.
The appellant contends that during the meetings regarding the possible EMTALA violation, she insisted that the hospital report the circumstances surrounding the distressed woman’s discharge to the PA Department of Health or PA Patient Safety Authority. According to appellant, everyone in the meeting agreed that the hospital’s discharge failed to comply with EMTALA. Nevertheless, over the objections by appellant, no one at the hospital reported the discharge to any regulatory authority or agency.
The Court first pointed out that “in the absence of direct evidence of retaliation, courts have applied the McDonnell Douglas burden –shifting framework to whistleblower claims under EMTALA . . . Although [the Court] has not yet specifically decided if we should apply that framework to resolve EMTALA claims, we found that if a statute does not provide for a burden shifting scheme, McDonnell Douglas applies.” Therefore, the court set forth that the McDonnell Douglas burden shifting scheme will be utilized when analyzing EMTALA claims. Accordingly, Appellant had the burden to establish that (1) she engaged in conduct that is protected by EMTALA (2) her employer subsequently took an adverse employment action against her and (3) the employer did so because she engaged in protected activity.
The Court found that Appellant had not established a prima facie case because she had not “made a report” as that term is considered under EMTALA. Report was defined as “something that gives information” or “a notification”. The Court said that “it is clear that [Appellant] failed to establish that she actually provided any information of an alleged EMTALA violation to anyone”. Rather, Appellants own deposition shows that her efforts occurred after the CEO of the hospital and other attendees concluded the discharge was a violation. That testimony was “fatal” to her attempt to claim protection under the whistleblower provision because she did not “make a report” under EMTALA.